I’m up for tenure this year, which helps explain (I hope) in part my lighter-than-usual blogging of late.  One of the things that has come up in the process is how my home institution (Temple) compares to other law schools in terms of the timing at which tenure and promotion are offered.  Temple hires folks starting out in law teaching as Assistant Professors, with promotion to Associate Professor (without tenure) considered in year 3 or 4, tenure consideration coming in year 5 or 6, and then full professor a couple of years after tenure.  To try and see how this track compares with other schools, Dave Hoffman (of Concurring Opinions fame) and I conducted an informal survey of colleagues at other law schools to see when and how they make these decisions.  

We obtained data on 41 law schools from the top 100 in US News & World Reports.  We found that tenure and promotion timelines could be divided into two broad categories:  1) the 25 schools that link tenure with promotion to full professor; and 2) the 16 schools that don’t.  We also found that 18 of the 36 schools where we obtained timelines allow a new hire to be considered for full professor one way or another in year 5, while 26 out of 36 allow it by year 6.  More specifics (and a question for international law professors) after the jump.

The Supreme Court’s Medellin decision has generated lots of academic attention (Julian and I, for example, are both participating in a joint ASIL-ABA Task Force on Treaties developed to address the future status of treaties in US law, which I’m sure will generate blog posts from one or both of us in the months ahead). This past week also saw the DC Circuit rely on Medellin explicitly in an August 26 opinion in the long-running case of McKesson v. Iran (this was not the first Appellate decision re treaties post-Medellin though, the Fifth Circuit, for example, took up that topic back in June).

McKesson was returning for its 5th visit to the DC Circuit, still plugging away at a claim originally made in 1982 against the Iranian government for taking a U.S. company’s holdings in an Iranian dairy interest post-Revolution.  McKesson has long argued that the 1955 Treaty of Amity prohibitions on expropriation without just compensation entitle it to relief in U.S. courts.  Ignoring the irony of a Treaty of Amity with Iran today, the D.C. Circuit disagreed; holding that even though the treaty was self-executing, and thus part of the supreme Law of the land, its provisions failed to overcome a standing presumption against private rights of action…

The State of Texas carried out its execution of Jose Ernesto Medellin late Tuesday night.  It did so following the Supreme Court’s denial of a stay, 5-4.  The split is unsurprising, with the majority focused (accurately I suspect) on the fact that a legislative fix was unlikely, and reading DOJ’s silence on the stay request as consistent with a larger pattern of Executive hostility to the ICJ ruling itself.  In terms of dissents, Justice Stevens moved from concurring in the original Medellin decision to dissenting on this one, having wanted to require the reluctant Solicitor General’s Office to provide views (the other dissenters echoed the call for paper from the S.G.).  Separately, I was disappointed to see the majority did little to qualify the confusion its Medellin decision caused over the domestic legal status of U.S. treaties.  The Majority simply noted that the treaty does “not itself have the force and effect of domestic law sufficient to set aside the judgement or ensuing sentence.”  That still leaves me wondering whether the court’s denial of domestic law status to non-self executing treaties means that they are not domestic law in any sense or only that they’re not judicially enforceable domestic law.

So, now what?  The United States has breached its obligation to comply with the ICJ’s Avena decision (not to mention the more recent provisional measures order).  But what exactly will that mean here?  Can Mexico now legally engage in reprisals or retorsion against the United States or (to take up Peter Spiro’s idea of targeted retaliation) against Texas specifically?  Even if it can, will it do so?  To date, Mexico has appeared content to employ the ICJ to amplify its rhetorical opposition to its citizens’ fate.  As yet, it’s taken few concrete actions to actually force a change in the U.S. position (i.e., doubling the time it takes US trucks to cross the border; suspending mutual legal assistance or extradition with the United States, etc.).

I’ve been spending more time than is probably healthy over the last year researching the Compact Clause. Article 1, Section 10 of the Constitution prohibits U.S. states from entering into any “treaty, alliance or confederation” and bans them “without the consent of Congress” from entering “into any agreement or compact with another state, or with a foreign power.” The Supreme Court has had its way with these provisions in the context of interstate compacts, interpreting “any agreement” to only mean “some agreements”, namely those that threaten the unity or supremacy of the federal government. And most (with a few notable exceptions like Ed Swaine and his dormant treaty power thesis) have assumed that the Court’s rationale extends to compacts or agreements with foreign powers. That might explain the results of my own research, where I’ve only found 5 instances in which Congress has specifically consented to a foreign compact…

The wide-ranging responses to Oona’s work are a testament to its ambition and importance. In the interest of keeping the discussion manageable, I’d like to offer two additional comments on Oona’s piece even though I could easily pursue a half dozen other lines of inquiry.

First, I wanted to comment on the subtitle of the article—“The Past, Present and Future of International Lawmaking in the United States.” I wonder about the use of the term “lawmaking” here. Is it true that when we talk about treaties we’re always talking about lawmaking? As Sir Gerald Fitzmaurice noted 50 years ago, treaties have always had trouble qualifying as a true source of international law since a treaty binds only the parties to it and thus its obligations are not “law” so much as “lawful.” A treaty may form a source of law where it states a general rule of general obligation (i.e., the prohibition on genocide in the Genocide Convention), but just as often a treaty merely creates specific obligations, binding only the parties to it (i.e., a debt-restructuring agreement). Moreover, I think there’s some evidence to suggest that the Framers appreciated these sorts of distinctions even if they’ve had little traction in subsequent U.S. treaty practice. Vattel, who was well known to the Framers, for example distinguished “agreements” and “compacts” from “treaties” based on their dispositional nature—agreements or compacts involve obligations that can be perfected by one or more acts; treaties involve on-going obligations or relationships.

Now, unless you’re an originalist, I’m not sure whether the original meaning of the term “treaty” matters that much to the current debate over pursuing Article II treaties versus congressional executive agreements (CEAs). Moreover, as a descriptive matter, I agree with Oona that the two methods have never been treated as truly equivalent; there have always been certain subjects (e.g., arms control) that have largely followed one path or the other. On the other hand, I wonder if Oona may too quickly dismiss the search for relevant legal differences that explain those cases where both methods have been employed for treaties that otherwise appear to involve the same subject. She cites investment as a prime example with 43 Article II treaties and 77 CEAs. And yet, there is a reasoned explanation for this practice. While most investment CEAs are a byproduct of Congress’ use of its foreign commerce power, the Bilateral Investment Treaties (BITs) that go through the Senate are the direct descendants of FCNs (Friendship, Commerce and Navigation treaties). FCNs often included obligations on friendly relations in addition to provisions on trade or investment. And since the Founding, the Senate has considered such “political relations” treaties as within its purview. Thus, even if these two sets of agreements now fall under a common heading of “investment,” you could distinguish them based on the underlying subjects—trade versus political relations—that led to the choice of one method over the other in the first place. And, if we can do that for one “subject,” is it possible we could do the same for the others? As such, I’d like to see more clarification of whether the subjects that Oona suggests are done as both CEAs and Article II treaties are really the same subject, or could be conceived of along different lines.

Moreover, even if descriptively I’m wrong, the fact that there are a number of distinct ways to distinguish categories of treaties (e.g., lawmaking vs. lawful; dispositional vs. non-dispositional) suggests that Oona’s normative inquiry might want to consider a wider frame. Rather than defaulting straight to CEAs in most instances, why not consider alternative rationales for employing one method over the other? For example, perhaps the more elaborate Article II process (especially including the potential need for implementing legislation) should apply to law-making treaties or, alternatively, to dispositional ones; CEAs could then cover lawful treaties or non-dispositional obligations. Or, perhaps the reverse could be true? I don’t necessarily have a view either way, but it occurs to me that if we’re going to reconceive the status quo division among CEAs and Article II, shouldn’t we consider the normative case(s) for distinguishing the two methods on other grounds as well?

I suspect government officials will cringe at such a suggestion, just as I suspect most do at Oona’s proposition. Which brings me to my second, more pragmatic, point—why would the Executive Branch want to clarify the admittedly obscure landscape involving treaties and CEAs? Oona rightly notes that the Executive Branch has a process—known as the C-175—by which the Department of State decides what domestic method to pursue in entering into a treaty commitment as a matter of international law. She does not, however, explore the likely mindset of Executive officials as they engage in that process. One might imagine, for example, that the primary concern of the Secretary of State (and her lawyers) is simply to ensure that there is domestic legal authority for the United States to bind itself internationally; which authority is employed may be of far less a concern so long as some constitutionally recognized authority exists.

Thus, if Executive Power covers the treaty’s obligations, the inquiry may end there. Certainly, the Executive would be happy to have (and cite) additional authority from either Congress or the Senate, but such authority would in the end be superfluous. For example, I’ve understood the Executive view to be that Status of Forces Agreements (SOFAs) fall under the Commander and Chief power alone, so that when Congress authorizes a SOFA (as it apparently did in one case cited by Oona) or the Senate approves a SOFA (as it did for the NATO SOFA) it’s not clear to me how much weight to give such authorizations. Similarly, if Executive Power is deemed insufficient, the Executive’s primary concern remains simply finding some authority to conclude the treaty, rather than worrying about whether to prefer one method normatively over another. Indeed, the Executive might regard such a normative inquiry as hostile to the very flexibility it now has to rely on whatever authority exists (e.g., pre-existing legislation or a pre-existing treaty) for a new treaty; or to undertake the requisite political calculus of whether to use the Senate or the Congress as a whole if there’s insufficient existing authority.

In terms of any political calculus, Oona assumes that CEAs will be easier to obtain than Senate advice and consent. But is that necessarily true? Even with a supermajority, the transaction costs of getting 67 Senators may be less than getting 51 senators plus 218 Representatives not to mention all the extra House Committees that must examine the agreement, etc. Indeed, just as Oona cites examples of cases where the Senate has rejected a treaty, blocked its approval, or imposed extensive conditions on advice and consent, I can think of counter-examples where the Senate has acted with amazing speed (see the Moscow Treaty or the ILO Convention on the Worst Forms of Child Labor). Now it may be that the totality of the Senate advice and consent experience has proved more cumbersome and forms a greater roadblock to treaty-making than the regular legislative process, but to know that don’t we need to know about cases where the Congress has similarly rejected, blocked or conditioned CEAs? In other words, can we really say CEAs are better than Article II without examining when and how often proposed CEAs are rejected or blocked just as Oona already has for those treaties placed before the Senate? That obviously may be hard to do (especially beyond trade agreements, and even there it’ll be harder now that there’s no more Fast Track authority). But absent some such evidence, can we blame the Executive Branch for wanting to have all these methods at its disposal when it seeks to conclude a treaty?

First off, let me thank Oona Hathaway and our guest bloggers for contributing to what is turning into a highly useful discussion of the relative merits of Article II treaties vs. congressional-executive agreements. Oona’s work is ambitious and provocative, seeking to marshal comparative, historical, and normative arguments in favor of (largely) discontinuing the Article II treaty-making process. Some of the most interesting discussion, no doubt, involves the historical and normative inquiries, but I wanted to say a word about the comparative issue Chris initially raised before we get too far down either of those other roads.

In responding to Chris’s questions about the utility of comparative analysis to her argument, Oona cites her own research to suggest that the United States is an outlier in terms of its Senate advice and consent process. Although I’d agree with her contention that the United States approach is relatively unique, I don’t agree that it follows that the United States must be viewed as operating inconsistently with how some majority of other states approach questions of legislative approval for treaty-making. My own research on the topic suggests that, although virtually all states require some form of legislative approach for some treaties, the diversity of approaches makes it difficult to create a uniform spectrum on one end of which the United States lies.

For starters, Oona suggests that Tajikistan and the United States are “the only countries in the world that provide for less involvement by a part of the legislature in treaty-making than in domestic lawmaking and make the results of this process automatically part of domestic law . . .” (p. 37) But what about Mexico? Under the Mexican Constitution, Mexico’s treaties are concluded by its President with the approval of its Senate alone and, so long as they are not inconsistent with the constitution, operate as the “supreme law of the land.” (see Arts. 89(X) and 133 of the Mexican Constitution). Similarly, Oona suggests that “only five other countries in the world—Algeria, Burundi, Iraq, Philippines, and Poland—require a supermajority vote in their legislature in order for the country to ratify a treaty” (p. 36) But there are other states that do require a supermajority vote, if not for all treaties, than at least for certain ones that implicate core constitutional issues (e.g., Austria, Germany, the Netherlands). States like Austria and Germany, moreover, also alter the respective functions of their legislative bodies for certain types of treaties than the functions they normally apply in considering domestic legislation.

I was also struck by the relative lack of discussion of “commonwealth” states such as the United Kingdom, Canada and India that don’t require legislative approval for treaty formation at all. If one were to try and construct some spectrum of legislative participation, it would seem that these states, not the United States, would have to be the outliers in terms of democratic participation in treaty formation. In truth, however, I think such a spectrum is difficult to create, particularly given that for most states the question is not so much how the legislature approves a treaty, but when it does so. Indeed, the United States is remarkably similar to the majority of states in having a multiplicity of domestic legal processes for forming treaties, only some of which involve the legislature. Some states (e.g., Chile, the Netherlands, South Africa, Switzerland) exempt out certain treaties from legislative approval; many others require approval only for specific categories of treaties (e.g., Egypt, France, Germany, Japan, Russia, Thailand).

Moreover, in focusing on legislative approval of treaties, I fear Oona’s comparative analysis undervalues the non-legislative mechanisms that other states have devised in deciding whether to join a treaty. For example, Switzerland has a relatively robust practice of popular referenda to approve some of its more politically or economically important treaties (as does France, albeit to a much more limited extent). Other states involve their judiciary, requiring a Constitutional Court or its equivalent to opine on a treaty’s constitutionality in advance of that state joining the treaty. Still other states—notably Canada and Germany—have mechanisms that incorporate the opinions of sub-national actors as part of the treaty-formation or implementation process. Thus, if you’re going to use a comparative lens to advocate for a more democratic treaty-making process, I’d think the paper needs to acknowledge the diversity not only among, but within, most states in how they go about joining treaties.

Finally, notwithstanding the value of Oona’s comparative research on its own terms, I wonder about its utility in the current context. It seems strange to me to rely only on foreign constitutions (and/or basic laws) in making a comparative analysis here. After all, if one did that for the United States, the congressional-executive agreement process at the heart of this paper would be left out. Similarly, I’m concerned that painting the United States as an outlier solely based on what foreign constitutions say may miss glosses on those texts by statutes, regulations or state practice. For example, although India’s constitution suggests that treaty-formation will require an act of Parliament (which I suspect is why Oona lists it in Annex C as requring regular legislative approval), in fact, the Parliament never passed the requisite law giving effect to this power. As a result, notwithstanding the constitutional text, in India the Executive continues to make treaties unfettered by any legislative approval requirement. Of course, the actual practice may cut the other way as well–for example, even as states like the United Kingdom say that they need no legislative approval to enter into a treaty, they have a practice of getting legislation if the treaty requires a change or expansion of existing domestic law in order to implement it.

In sum, I welcome Oona’s effort to try and place the U.S approach to treaty-making in a comparative context. At the same time, however, I worry that in its present effort to create hard categories that seek to distinguish how other states operate from the Article II process, the paper may give the false impression that other states lack some of the same multi-faceted features that exist in U.S. treaty law and practice. Of course, this critique doesn’t undercut the value of her overall inquiry, but it does suggest a comparative analysis may not do exactly what her current draft suggests it does.